Lawyers express dismay at failure to implement new land laws

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Lawyer Allen Gichuki

Harold Ayodo

Lawyers have raised the red flag over failure of new land laws to improve service delivery during property transactions.

The lawyers who were attended a Continuing Professional Development (CPD) Seminar on Property Law and Natural Resources at Panari Hotel, Nairobi, last month said repealed laws are still used in conveyancing (property transactions).

They also expressed concern that grand standing and perpetual turf wars between the National Land Commission (NLC) and the Land ministry has had a negative influence on service delivery at land registries.

They singled out rampant corruption, poor time lines, missing files, delays in extension of leases and incorporation of trusts as being among the commonest hurdles to property transactions.

Lawyer Ambrose Rachier lamented that the Rules and Regulations contemplated by the new Land Acts have not been promulgated.

“Prescribed conveyancing forms are not accessible, forcing conveyancers to rely on the old forms under repealed Acts,” Rachier said.

Rachier who is among the drafters of the new land laws – Land Act, Land Registration Act and National Land Commission Act – was presenting a paper titled Effectiveness of the New Land Laws.

On assessing the effectiveness of the new land laws, he said that the Rules and Regulations contemplated by the new Land Acts have not been promulgated – a delay that impacts negatively on property transactions.

“Conveyancing prescribed forms are lacking, and conveyancers (property lawyers) have to rely on the old forms – it beats the logic of reforms as to why references are still made to Acts that have been repealed.”

He said that savings and transitional provisions remain unclear following lack of clarity and depth in the transitional provisions of new laws.

According to the lawyer, after a three-year hiatus and controversy on who should sign documents, turf wars between NLC and the CS, Land, has led to delays in service delivery.

“There is need for more audit on the new land laws, enhanced advocacy, standalone legislations and further reforms to clear grey areas,” Rachier asserted.

Lawyer Martin Oloo said that the NLC is in a limbo following provisions of the constitution that limits its functions.

“The constitution watered down the functions of the NLC as envisaged in the National Land Policy,” Oloo said, adding that the new land laws were crafted by lawyers and the Constitution is also clear on its provisions on land.

“Fidelity of lawyers is to the constitution. Some provisions of the new Land Acts are not in consistence with the Constitution.”

LSK Council Member Allen Gichuhi took a swipe at the National Land Commission over wanting service delivery – including responding to letters.

“I recently moved to court to seek orders for the NLC to respond to my communication to them,” said Gichuhi. He was referring to a barrage of cases and citations when presenting his paper titled A Litigator’s Guide to Topical Issues in the Land Acts.

He took issue with some counties like Kajiado for allegedly passing illegal policies that impact negatively on land transactions. “It is unconstitutional for Kajiado County to claim to ban transactions on private land as the constitution protects property ownership rights.”

Njora Waweru, who presented a paper titled Conveyancing under the Current Land Regime, regretted that the new land laws are yet to revolutionise transactions.

“Land problems in areas like Kajiado remain a nightmare, three years after enactment of the new land laws,” he explained.

Waweru stated that the new land laws were mainly enacted to create new titles to land, administration of the new titles and resolution of disputes. “Conveyancing under the new Land Acts is not yet operational and we are practicing property law under the old Acts.”

The lawyers concurred that matters that required land reforms – in line with Session Paper No. 3 of 2009 (The National Land Policy) – land allocation and compulsory acquisition needed urgent attention. Others are land hoarding, absentee landlordism and subdivision into uneconomic units, numerous legislations over land, squatters and informal settlements.

Others include delays in service delivery, access to land by vulnerable populations, indefeasibility of title, historical land injustices, as well as protection of matrimonial property and community land.

The lawyers concurred that the basis of amendments to land laws are detailed in Article 68 of the Constitution that Parliament shall revise, consolidate and rationalise existing land laws. According to Rachier, Parliament was also to prescribe minimum and maximum land acreage ownership, explaining that the Land Act establishes substantive law regarding administration of land countrywide.

Noted Rachier: “The Land Registration Act provides the regime for the process of registration while the National Land Commission (NLC) Act sets out powers and mandate of the NLC established under Article 67 of the Constitution.”

He said that Section 110 of the Land Act provides for pre-emptive rights where land was acquired for a public purpose and was not used then the owner should be given first opportunity to re-own.

Stark realities of the decay in land registries sprung to the fore following a recent exclusive audit by the Law Society of Kenya. The report exposed insurmountable challenges property transactions underwent in Nairobi, Mombasa, Thika and Nakuru land registries.

The 156-page report, titled Report on the Audit of the Nairobi, Mombasa, Thika and Nakuru Land Registries: An Assessment of the Business Processes, exposed missing land rent records, erroneous results of official searches and delays in valuation of property as among notorious vices in the registries, besides delays in stamping of documents following missing files, understaffing, inadequate training of staff and rampant corruption.

Surprisingly, property transactions also delay when repairable machines like photocopiers break down in several occasions. According to the audit, valuation of property was at snail pace as there was only one government valuer in each of the district offices – valuation by private valuers is not accepted.

At the time of the audit, two years ago, the Nairobi District Registry had only three registrars signing loads of documents but only one was in office during the assessment.^

Ayodo is the Head of Communications at the Law Society of Kenya; harold.ayodo@lsk.or.ke

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